Womack v. Central Lumber Co.

• Decision Date: 20 November 1922
• Docket Number: 22854
• Citation: 131 Miss. 201,94 So. 2
• Court: Mississippi Supreme Court
• Parties: WOMACK v. CENTRAL LUMBER CO

94 So. 2

131 Miss. 201

WOMACK v. CENTRAL LUMBER CO

No. 22854

Supreme Court of Mississippi

November 20, 1922

1 TAXATION. Tax title void where land consisting of more than one hundred acres was sold as an entirety instead of in forty-acre parcels.

A tax title to land is void where the land involved consisted of one tract of more than one hundred acres and was assessed to "unknown," and in making sale thereof the tax collector failed to comply with the provision of section 4328, Code 1906 (section 6962, Hemingway's Code, which requires that in making such sales the tax collector shall first offer forty acres, and if the parcel so offered does not produce the required amount then he shall add another similar subdivision, and so on until the requisite amount shall be bid or the land constituting one tract and assessed as the property of the same owner, be offered, but instead in the first instance offered and sold the land as an entirety.

2 TAXATION. Tax titles not valid where there was a total failure to comply with rules as to assessments and sales.

The provision of said section to the effect that no tax title shall be invalidated for error in conducting the sale and the provision of section 4332, Code of 1906 (Hemingway's Code, section 6966), to the effect that no tax title shall be invalidated in any court except by proof that the land was not liable to sale for taxes or that the taxes thereon had been paid, or the sale had been made at the wrong time or place, were not intended to apply to tax sales of land where there was a total departure from the statutes prescribing the fundamentals of the assessment and sale of land for taxes one of which is the requirement prescribing the subdivisions in which such lands shall be offered.

3 STATUTES. Re-enactment of statute construed by supreme court carries with it indorsement of such construction.

Where a statute has been construed by the supreme court and afterwards re-enacted by the legislature in the same form such re-enactment carries with it an indorsement by the legislature of such construction.

HON. R. W. CUTRER, Chancellor.

APPEAL from chancery court of Franklin county, HON. R. W. CUTRER, Chancellor.

Bill by W. H. Womack against the Central Lumber Company. Decree of dismissal, and complainant appeals. Affirmed.

Affirmed.

Theo McKnight, for appellant.

To say that a tax deed is void because the tax collector did not offer the land for sale in forty-acre lots as provided by section 4328, Code 1906, would put this section in hopeless conflict with section 4332. They can be construed together. Section 4332 is by its very language exclusive as to what defenses may be made to a tax collector's conveyance. If this is true, then the provisions of section 4328 are not defenses to a tax collector's conveyance, unless they are the same as the provisions of section 4332, or named among the things enumerated by the latter section as being such defenses. Section 4328 provides that on the first Monday in March, if the taxes are unpaid the collector shall sell enough of the land of each delinquent taxpayer to pay his taxes, to the highest bidder for cash. That he shall offer forty acres, etc.; but neither a failure to advertise nor error in an advertisement nor error in conducting the sale, shall invalidate a sale at the proper time and place for taxes, of any land on which the taxes were due and not paid; but a sale made at the wrong time or at the wrong place shall be void. This section then provides for the recovery of damages on the official bond of the tax collector for any failure or error on his part. The failure of the tax collector to offer in forty-acre lots would be an error in conducting the sale, and would be illegal as far as the tax collector's liability on his official bond is concerned. But, this section negatives, in strong English, any idea that the failure to offer in forty-acre lots shall have any effect upon the sale by saying that: "Neither a failure to advertise nor error in an advertisement nor error in conducting the sale shall invalidate a sale at the proper time and place for taxes, of any land on which the taxes were due and not paid." And then, as if to reassert that nothing already said should invalidate such a sale, and to preserve its harmony with section 4332, adds: "But a sale made at the wrong time or at the wrong place shall be void." If it had been the purpose of the statute to invalidate a sale of any land not offered in forty-acre lots, the language would have been: "But a sale made at the wrong time or at the wrong place or without offering the land in forty-acre lots shall be void."

It is certainly not the prospective purchaser at the tax sale, who is designated as the person who may sue on the official bond of the tax collector for any failure or error of said collector. The person mentioned, unquestionably, is the owner of the land sold, who is given the right to sue for damages for failure to do something or for error in doing something required of the tax collector by this section, chief of which is the selling in fort-acre lots. But if the sale is void because his land was not sold in forty-acre lots, he is not damaged but is benefitted by escaping the payment of his taxes, notwithstanding his land is liable to taxation, is assessed; his taxes are due and not paid; and his land is sold at the proper time and place.

Section 4332, Code 1906, after providing the form of a tax collector's conveyance, says positively: "And no such conveyance shall be invalidated in any court" except by proof of the things stated in said section--and then as if to preserve its harmony with section 4328, it mentions, among other things which may invalidate a tax sale, the payment of taxes before sale, and a sale at the wrong time and place, but does not mention the failure to offer in forty-acre lots. Therefore, to say that, a failure to offer in forty-acre lots invalidates a tax sale puts sections 4328 and 4332 in hopeless conflict, which condition is avoided by holding section 4332 to be exclusive as to defenses against tax titles, and that a sale in forty-acre lots is not essential to the validity of a tax title. The cases bearing on sales by forties. Griffin v. Ellis, 63 Miss. 348, was decided in 1885 under section 525, Code 1880, which did not contain the provision of clause: "Nor error in conducting the sale. "This clause appeared for the first time in section 3813, Code 1892. Nelson v. Abernathy, 74 Miss. 164, was decided in 1896, and involved the question of a sale in forty-acre lots. This case was under section 3813, Code 1892. This case does not hold that under section 3813, Code 1892; a sale by forties is essential to the validity of a tax title. The court declining in these words: "We do not now hold, however, that the failure to do this would make the sale void," to so hold.

The court says that, it is distinctly averred in the bill, and admitted by the demurrer, that the sheriff failed to designate or describe the forty-acre tracts "in any way whatever." And the court says: "But we do hold that the failure to describe or designate in any way what forty acres the sheriff was offering does render the sale void." "The things omitted by the sheriff to show what he was offering does render the sale void." "The things omitted by the sheriff in making this sale are fundamental." "The provision in section 3813, Code 1892, that no error in conducting the sale should invalidate it, does not have the effect to cure a total departure from the manner of selling prescribed by law--to make immaterial the things which are fundamentally vital to a valid sale." The fundamentally vital thing omitted was to describe the lots sold or to designate them in any way whatever.

Herron v. Jennings, 31 So. 965, not officially reported was intended to follow the Abernathy case, above, but is a clear misconception of the point in the Abernathy case. It mistakes the failure to sell in forty-acre lots, for the failure to designate or describe the forty-acre lots, as the thing that was "fundamentally vital to a valid sale," and thus credits the Abernathy case with holding something which it positively and distinctly declines to decide, as already quoted above.

Stevenson v. Reed, 90 Miss. 344, was really decided in the first line of the opinion, where Judge WHITFIELD said "The taxes were shown to have been paid by satisfactory evidence." He also said: "The method was illegal. The sheriff should have sold forty acres at a time." He did not say that the sale was void because of the illegality of the method of sale. This is carefully avoided by the opinion. It is the illegality of the method which renders the tax collector liable for damages on his official bond. His failure to sell in forties constitutes the illegality of his method, which, in turn, renders him liable on his official bond. Moores v. Thomas, 95 Miss. 650, holds that. "Sections 4284, 4332, Code 1906 (sections 3775, 3817, Ann. Code 1892), declare what, and only what, shall invalidate a sale for taxes."

North v. Culpepper, 97 Miss. 740: "There was no error committed by the tax collector in conducting the sale; but if there had been, section 3813, Code 1892 (section 4328, Code 1906), prevents the error from invalidating the sale, if the property was sold at the proper time and place and the taxes were due and unpaid." Reed v. Head, 97 Miss. 754: "Section 4332, Code 1906 (section 3817, Code 1892), provides what defense may be made to a tax collector's deed, and this section is exclusive of all others." Central Trust Co. v. Haynes, 110 Miss. 132: "The defects, if any there be, in the allegations of the bill of complaint, are cured by sections 4332 and 4367, Code 1906, and it therefore follows that the...